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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File Nos. EB-07-IH-5331
In the Matter of ) EB-08-IH-1547
Pontifical Catholic University of puerto ) NAL Account No.
rico Service Association, Inc. 200932080050
)
Licensee of Noncommercial Educational Facility ID No. 9351
Station WPUC-FM, Ponce, Puerto Rico )
FRN No. 0001731314
)
)
)
ORDER
Adopted: July 31, 2009 Released: August 3, 2009
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Pontifical Catholic
University of Puerto Rico Service Association, Inc. ("Licensee"). The
Consent Decree terminates an investigation by the Bureau against the
Licensee for possible violations of Section 399B of the Communications
Act of 1934, as amended, and Section 73.503(d) of the Commission's
Rules regarding the broadcast by the Licensee of underwriting
acknowledgments over Station WPUC-FM, Ponce, Puerto Rico (the
"Station").
2. The Bureau and the Licensee have negotiated the terms of the Consent
Decree that resolve this matter. A copy of the Consent Decree is
attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether the Licensee possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended, and Sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that the third-party complaints and allegations
against the Station and/or the Licensee before the Enforcement Bureau
related to the above-captioned investigation as of the date of this
Consent Decree ARE DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent to Pontifical Catholic University of Puerto Rico Service
Association, Inc., by first-class, certified mail, return receipt
requested, to Charles R. Naftalin, Esq., Rosalind Allen, Esq., Frances G.
Faigenblat, Esq., and Leighton T. Brown, II, Esq. Holland & Knight LLP,
2099 Pennsylvania Avenue, NW, Suite 100, Washington, DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File Nos. EB-07-IH-5331
In the Matter of ) EB-08-IH-1547
Pontifical Catholic University of puerto ) NAL Account No.
rico Service Association, Inc. 200932080050
)
Licensee of Noncommercial Educational Facility ID No. 9351
Station WPUC-FM, Ponce, Puerto Rico )
FRN No. 0001731314
)
)
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Pontifical Catholic University of
Puerto Rico Service Association, Inc. ("Licensee"), by their authorized
representatives, hereby enter into this Consent Decree for the purpose of
terminating the Enforcement Bureau's above-referred investigation into
whether Licensee violated Section 399B of the Communications Act of 1934,
as amended, and Section 73.503(d) of the Commission's rules, in connection
with the broadcast by Licensee of underwriting acknowledgments over its
noncommercial educational FM radio station, WPUC-FM, Ponce, Puerto Rico.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C.
S: 151 et seq.
b. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
c. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
d. "Complaints" mean all third-party complaints alleging violations of
the Commission's Underwriting Laws, including those dated May 16, 2008
and an undated complaint forwarded through the Bureau's August 14,
2008 Letter of Inquiry that may have been received by, or is in the
possession of, the Commission, and all related information or
allegations.
e. "Compliance Plan" means the program described in this Consent Decree
at paragraph 8.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation concerning the Complaints
commenced by the Bureau's October 22, 2007 and August 14, 2008 Letters
of Inquiry regarding whether Licensee violated the Commission's
Underwriting Laws in connection with its operation of the Station
during May and July of 2007 as well as between October 27, 2007 and
November 25, 2007.
h. "Licensee" means the Pontifical Catholic University Service
Association and its predecessors-in-interest and
successors-in-interest as licensee of the Station.
i. "Order" or "Adopting Order" means an Order of the Bureau adopting the
terms of this Consent Decree without change, addition, deletion, or
modification.
j. "Parties" mean Licensee and the Bureau.
k. "Rules" mean the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
l. "Station" means noncommercial educational FM radio station WPUC-FM,
Ponce, Puerto Rico (Facility ID No. 9351).
m. "Underwriting Laws" mean Section 399B of the Communications Act of
1934, 47 U.S.C. S: 399b, and Section 73.503(d) of the Commission's
Rules, 47 C.F.R. S: 73.503(d).
II. BACKGROUND
2. Pursuant to Section 399b(a) of the Act and Section 73.503(d) of the
Rules, advertisements are defined as program material broadcast "in
exchange for any remuneration" and intended to "promote any service,
facility, or product" of for-profit entities. Section 399b(b)(2)
specifically provides that noncommercial educational stations may not
broadcast advertisements. Although contributors of funds to such
stations may receive on-air acknowledgements of their support, the
Commission has held that such acknowledgements may be made for
identification purposes only, and should not promote the contributors'
products, services, or businesses. Specifically, such announcements
may not contain comparative or qualitative descriptions, price
information, calls to action, or inducements to buy, sell, rent or
lease. At the same time, however, the Commission has acknowledged that
it is at times difficult to distinguish between language that promotes
versus that which merely identifies the underwriter and is consistent
with the Commission's Rules and decisions establishing compliant
underwriting announcements. Consequently, the Commission expects
licensees to exercise reasonable, "good faith" judgment in this area,
and affords some latitude to the judgments of licensees who do so.
3. On October 22, 2007, the Bureau inquired about a complaint alleging
that Licensee had aired advertisements in violation of the
Underwriting Laws during sporting events on May 28, 2007, July 2, 2007
and July 28, 2007. Licensee responded on November 21, 2007, informing
the Bureau that the sporting events aired on May 28, 2007 and July 2,
2007. Licensee also stated that it had advertisements that may have
aired on those two dates. On August 14, 2008, the Bureau inquired
about a complaint alleging that Licensee had aired advertisements in
violation of the Underwriting Laws between October 27, 2007 and
November 25, 2007. The Bureau directed Licensee to produce further
information on October 27, 2008 and April 17, 2009. Licensee responded
on September 29, 2008, November 26, 2008 and June 1, 2009, informing
the Bureau that numerous announcements had aired between October 27,
2007, and November 25, 2007.
III. TERMS OF AGREEMENT
4. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
5. Jurisdiction. Licensee agrees that the Bureau has jurisdiction over it
and the matters contained in this Consent Decree and has the authority
to enter into and adopt this Consent Decree.
6. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the FCC releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order, or of the terms of this
Consent Decree, shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Commission Order.
7. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree, and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigation and dismiss the Complaints. In consideration for the
termination of said Investigation and dismissal of the Complaints,
Licensee agrees to the terms, conditions, and procedures contained
herein. The Bureau further agrees that, in the absence of new material
evidence, the Bureau will not use the facts developed in this
Investigation through the Effective Date of the Consent Decree, or the
existence of this Consent Decree, to institute, on its own motion, any
new proceeding, formal or informal, or take any action on its own
motion against Licensee concerning the matters that were the subject
of the Investigation or the Complaints. The Bureau also agrees that it
will not use the facts developed in this Investigation through the
Effective Date of this Consent Decree, or the existence of this
Consent Decree, to institute on its own motion any proceeding, formal
or informal, or take any action on its own motion against Licensee
with respect to Licensee's basic qualifications, including its
character qualifications, to be a Commission licensee or to hold
Commission authorizations.
8. Compliance Plan. For purposes of settling the matters set forth
herein, Licensee agrees to maintain a Compliance Plan related to
future compliance with the Act, the Commission's Rules, and the
Commission's Orders. The Plan will include, at a minimum, the
following components:
a. Licensee will use a multi-level review procedure for underwriting
content to be broadcast on the Station. In working with prospective
underwriters, Licensee staff will brief potential donors on the
Underwriting Laws, provide them with the current Licensee Underwriting
Guidelines, and work with them to fashion acceptable language.
b. Licensee has prepared, with the assistance of legal counsel, an
employee manual on allowed and prohibited announcements, will train
employees and student interns on acceptable underwriting content that
complies with the Underwriting Laws, and has placed a moratorium on
accepting any new contracts with sports organizations for the broadcast of
such organizations' games.
c. Licensee will make good faith efforts, with respect to independently
produced programming broadcast on the Station, to obtain from the
distributors of such programming the copy for underwriting announcements
contained in such programming in advance of such programming's broadcast,
for the purposes of independently reviewing such copy for compliance with
the Underwriting Laws.
9. Compliance Reports. Licensee will file compliance reports with the
Commission ninety days after the Effective Date, twelve months after the
Effective Date, twenty-four months after the Effective Date, and upon
expiration of this Consent Decree, three years after the Effective Date.
Each compliance report shall include a compliance certificate from an
officer, as an agent of Licensee, stating that the officer has personal
knowledge that Licensee has established and maintained on an ongoing
basis operating procedures intended to ensure compliance with this Consent
Decree, together with an accompanying statement explaining the basis for
the officer's compliance certification. Each compliance report will
describe any significant difficulties Licensee has encountered during the
reporting period in ensuring compliance with the Underwriting Laws, what
steps it has taken to resolve those difficulties, and the success of those
steps in doing so. All compliance reports shall be submitted to the Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554.
10. Termination Date. Unless stated otherwise, the requirements of this
Consent Decree will expire three (3) years after the Effective Date.
11. Voluntary Contribution. Licensee agrees that it will make a voluntary
contribution to the United States Treasury in the amount of Seventeen
Thousand Dollars ($17,000.00). The payment will be made in three
installments, with the first payment of $7,000 to made within five (5)
calendar days after the Effective Date of the Adopting Order, the second
payment of $5,000 to be made no later than ninety (90) calendar days of
the Effective Date of the Adopting Order, and the third payment of $5,000
to be made no later than one hundred eighty (180) calendar days of the
Effective Date of the Adopting Order. Each payment must be made by check
or similar instrument, payable to the order of the Federal Communications
Commission. The payments must include the NAL/Account Number and FRN
Number referenced in the caption to the Adopting Order. Payment by check
or money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account number
27000001. For payment by credit card, an FCC Form 159 (Remittance Advice)
must be submitted. When completing the FCC Form 159, enter the
NAL/Account number in block number 23A (call sign/other ID), and enter the
letters "FORF" in block number 24A (payment type code). Licensee will also
send electronic notification on the dates said payments are made to
Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov,
and to Anjali.Singh@fcc.gov.
12. Waivers. Licensee waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or to
otherwise challenge or contest the validity of this Consent Decree and the
Order adopting this Consent Decree, provided the Commission issues an
Order adopting the Consent Decree without change, addition, modification,
or deletion. Licensee shall retain the right to challenge Commission
interpretation of the Consent Decree or any terms contained herein. If
either Party (or the United States on behalf of the Commission) brings a
judicial action to enforce the terms of the Adopting Order, neither
Licensee nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Licensee shall waive any statutory right
to a trial de novo. Licensee hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5 U.S.C. S: 504 and
47 C.F.R. S: 1.1501 et seq., relating to the matters addressed in this
Consent Decree.
13. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent Rule or Order adopted by
the Commission (except an Order specifically intended to revise the terms
of this Consent Decree to which Licensee does not expressly consent) that
provision will be superseded by such Commission rule or Order.
14. Successors and Assigns. Licensee agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
15. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute either
adjudication on the merits or a factual or legal finding or determination
regarding any compliance or noncompliance with the requirements of the Act
or the Commission's Rules and Orders. The Parties agree that this Consent
Decree is for settlement purposes only and that by agreeing to this
Consent Decree, Licensee does not admit or deny noncompliance, violation
or liability for violating the Act, the Commission's Rules or Orders in
connection with the matters that are the subject of this Consent Decree.
16. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
17. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to affect
the meaning or interpretation of this Consent Decree.
18. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
19. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed and
delivered, shall be an original, and all of which counterparts together
shall constitute one and the same fully executed instrument.
________________________________
Kris Anne Monteith
Chief
Enforcement Bureau
________________________________
Date
________________________________
Julio E. Feliu Ramirez
Executive Director
Pontifical Catholic University of
Puerto Rico Service Association, Inc.
________________________________
Date
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
See 47 U.S.C. S: 154(i).
See 47 C.F.R. S:S: 0.111, 0.311.
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
See Letter from Benigno E. Bartolome, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to Licensee, dated October 22,
2007("October 22th LOI"); Letter from Kenneth M. Scheibel, Jr., Assistant
Chief, Investigations and Hearings Division, Enforcement Bureau, to
Licensee, dated August 14, 2008 ("August 14th LOI").
See 47 U.S.C. S: 399b.
See 47 U.S.C. S: 399b(a).
See 47 U.S.C. S: 399b(b)(2).
See Commission Policy Concerning the Noncommercial Nature of Educational
Broadcasting Stations, Public Notice (1986), republished, 7 FCC Rcd 827
(1992) ("Public Notice").
See Id.
See Xavier University, Letter of Admonition, issued November 14, 1989
(Mass Med. Bur.), recons. granted, Memorandum Opinion and Order, 5 FCC Rcd
4920 (1990).
Federal Communications Commission DA 09-1577
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